Green v. Bounds , 112 Miss. 252 ( 1916 )

Smith, C. J.,

delivered the opinion of the court.

This is an action by appellee to recover from appellant the sum of five hundred sixty-seven dollars and twelve cents, balance alleged to be due on an account consisting of several items for money loaned. Appellant’s claim is that certain credits due him have been omitted from the statement of the account filed with appellee’s declaration, and that he, in fact, owes appel-lee ten dollars and forty cents only. There was a verdict and judgment for appellee in the sum of three hundred forty-one dollars and thirty-nine cents.

The evidence discloses that appellant and his brother, W. W. Green, entered into a contract to sell and deliver logs to appellee. Appellant owned the land from which he and his brother intended to cut the logs, and in order that their contract with appellee might be complied with they entered into an agreement that "W. W. Green would, at his own expense, cut and deliver the logs to appellee, and that they, appellant and his brother, would divide the money received therefor from appellee equally between them.

After the delivery to appellee of a portion of the timber covered by this contract, he agreed to advance appellant the sum of eight hundred and fifty dollars, and, according to the evidence introduced in behalf of appellant, it was agreed between them that appellee owed appellant the sum of two hundred and fifty dollars, one-half of the purchase price of the logs theretofore delivered, which amount would be credited by appellee upon the eight hundred and fifty dollars to be advanced to appellant'. It was also agreed between them, according to the testimony of appellant, that when logs should be thereafter delivered one-half of the price to be paid therefor should be credited upon uthe amount due him by appellant. The logs thereafter for the most part were delivered by W. W. Green, who, according to his testimony, instructed appellant or his agent to credit one-half of the money to be paid therefor to himself and one-half to his brother, B. E. Green. Instead of doing this, the entire amount was each time credited to the individual account of W. W. Green, who seems to have obtained from appellee money and supplies .sufficient to consume the amounts so-credited to him. He claims, however, to have been unaware that he was being credited with more than his share of the proceeds of the sale of the logs. All of this defensive matter was denied by appellee.

At the conclusion of the evidence the court instructed the jury:

“That under no circumstance in this case can the defendant set off against plaintiff more than two hundred fifty dollars and twenty-four cents, being the amount of the credit which the defendant claims that he had on the hooks of the plaintiff when he, the defendant, arranged to borrow the eight hundred and fifty dollars from the plaintiff as shown on plaintiff’s account. ’ ’

In the brief of counsel for appellee it is said that the sole question presented by this record is:

“Will the appellant he allowed to set off, in a suit by appellee against him individually, a claim of a partnership composed of appellant and another against appellee?”

As we understand the record, the question presented is not one of set-off, hut simply one of payment. If the evidence introduced in behalf of appellant he true, the logs were delivered to appellee under an agreement, assented to by all parties interested therein, that one-half of the proceeds thereof should he retained by appellee and applied to the payment of the account due him by appellant; and if he failed to so apply these payments, he, and not appellant, must suffer therefor.

It is true that in appellant’s affidavit denying the correctness of the account sued on and setting up the additional credits to which he claims to be entitled he states “that he is due the following amounts as additional credits and which he claims as set-offs, as follows,” etc., but the character of a complaint or defense is not determined by what it is styled in the pleadings, hut by what it in fact is.

Reversed and remanded.